The provisions relating to promotional marketing practices regulate the nature and administration of those marketing techniques that involve the provision of direct or indirect additional benefits, usually on a temporary basis, designed to make goods or services more attractive to consumers. The provisions cover, amongst others, such forms of promotion as:
- premium offers
- reduced price and free offers
- the distribution of vouchers, coupons and samples
- personality promotions
- charity-linked promotions
- prize promotions
The provisions are designed primarily to protect the public but they also apply to trade promotions and incentive schemes and to the promotional elements of sponsorship.
Promoters are responsible for all aspects and all stages of their promotions.
Sales promotions should be conducted equitably, promptly and efficiently and should be seen to deal fairly and honourably with consumers. Promoters should avoid causing unnecessary disappointment.
The presentation of sales promotions and the associated publicity should not mislead consumers.
All supporting advertising material should conform both to the law and to the Code. In particular, descriptions of promotional products should not overstate their quality, availability, uses or value.
Promoters should have proper regard for normal safety precautions. Promotional products and samples should be distributed in such a way as to avoid the risk of harm to consumers. Special care should be taken when sales promotions are addressed to children or where products intended for adults may fall into the hands of children. Literature accompanying promotional items should contain any necessary safety warnings.
Sales promotions should be designed and conducted in a way that respects the right of consumers to a reasonable degree of privacy and freedom from annoyance.
Consumers should be told before entry if participants may be required to become involved in any of the promoters’ publicity or advertising, whether it is connected with the sales promotion or not. Prize-winners’ interests should not be compromised by the publication of excessively detailed information.
Promoters should not offer promotional products that are of a nature likely to cause offence or products which, in the context of the promotion, may reasonably be considered to be socially undesirable.
Promoters should be able to demonstrate that they have made a reasonable estimate of the likely response and that they are capable of meeting that response. This applies in all cases except prize promotions, where the number of prizes to be awarded should be made clear to participants.
Phrases such as “subject to availability” do not relieve promoters of the obligation to take all reasonable steps to avoid disappointing participants.
If promoters are unable to meet demand for a promotional offer because of an unexpectedly high response, or some other unanticipated factor outside their control, products of a similar type and similar or greater quality and value, or a cash payment, should normally be substituted.
Promoters should ensure that promotional products meet satisfactory standards of safety, durability and performance in use. Where appropriate, such matters as guarantees and after-sales service should be clearly explained.
Terms and Conditions of the Promotion
The terms and conditions in which a promotion is presented should be clear, complete and easy for the consumer to understand. The following points should be clearly explained:
(a) How to participate including any conditions and costs.
(b) The promoter’s full name and business address in a form that can be retained or continually accessed by consumers.
(c) The closing date for entry or the submission of claims should be prominently displayed. Where the final date for purchase of the promoted product differs from the closing date for the submission of claims or entries, this should be made clear to participants.
(d) Any proof-of-purchase requirements. This information should be emphasised, for example, by using bold type, separating it from other text or using a different colour. A requirement to purchase more than one unit of a product to participate in a promotion should, normally, be stated on the front of any label or material carrying details of the promotion.
(e) Any geographical or personal restrictions.
(f) Any necessary permissions (such as, for example, those of parents or guardians).
(g) Any limit on the number of applications permitted.
(h) Any limit on the number of promotional products that an individual consumer or household may claim or win.
(i) Any other factor likely to influence consumers’ decisions or understanding about the promotion.
Any terms or conditions, the effect of which is either to exclude some consumers from the opportunity to participate, or to impose requirements that are likely to affect a consumer’s decision whether or not to participate, should be clearly and prominently stated so as to be clear to the consumer before any commitment is made.
Marketing communications that include a promotion and are significantly limited by time or space should include as much information about significant terms and conditions as practicable and should direct consumers clearly to an easily accessible alternative source where all terms and conditions of the promotion are prominently stated. Participants should be able to retain this information or easily access it throughout the promotion.
Sales promotions should be conducted under proper supervision and with adequate resources. Promoters and intermediaries should not give consumers any justifiable grounds for complaint.
Promoters should allow ample time for each phase of the promotion: notifying the trade, distributing the goods, issuing rules where appropriate, collecting the wrappers and the like, judging and announcing the results.
Promoters should fulfil applications within 30 days, unless
(a) participants have been told in advance that it is impractical to do so, or
(b) participants are informed promptly of unforeseen delays and are offered another delivery date or an opportunity to recover any money paid for the offer.
When damaged or faulty goods are received by a consumer, promoters should ensure either that such goods are replaced without delay or that a refund is sent immediately. The promoters are entitled to seek the return of the faulty goods and, if possible, the original packaging, at their expense. The full cost of replacing damaged or faulty goods should fall on promoters. If any applicant does not receive goods, promoters should normally provide them at no extra cost to the consumer.
An offer should be described as free only if consumers pay no more than any one or more of the following:
(a) The minimum, unavoidable cost of responding to the promotion, such as, for example, the current public rate of postage, the cost of telephoning up to and including the standard national rate or the minimum, unavoidable cost of sending an email or SMS text message or other digital communication.
(b) The actual cost of freight or delivery.
(c) The cost, including incidental expenses, of any travel involved if consumers collect the product or service offered. In all cases, consumers’ liability for such costs should be made clear and there should be no additional charges for packaging or handling.
Advertisers should not attempt to recover their costs by reducing the quality or composition of a product, by imposing additional charges, by inflating incidental expenses or by increasing the price of any other product that must be purchased as a pre-condition of obtaining a free item.
A trial should not be described as free if the consumer is expected to pay the cost of returning any goods, unless this requirement is made clear to the consumer when the offer is made.
Where an offer appears on a product, and when benefiting from that offer requires several purchases of the product, the need to make additional purchases should be clearly indicated.
Where an offer covers two or more items, of which only one is free, it should be made clear to the consumer what is offered free and what they must pay for.
Where unsolicited samples or gifts are distributed through a promotion, it should be made clear that the consumer is under no obligation to buy or return the items.
The fact that promotional products may be acquired free of charge does not dispense with the need for a full and correct description of the products.
Promotions involving prizes are subject to legal requirements and promoters are strongly advised to seek expert legal advice.
Entry conditions should be clearly worded and should set out the following details:
(a) the closing date;
(b) any age, eligibility or geographical restrictions;
(c) any restrictions on the number of entries or prizes;
(d) any requirements for proof of purchase;
(e) any permissions required (such as, for example from parent or employer);
(f) the criteria for judging entries;
(g) a full and accurate description of the prizes;
(h) any limit on the number of prizes that an individual consumer or household may claim or win, any limitations imposed on acceptance of the prizes and any duties or obligations on the part of the winners (such as, for example, in regard to post-event publicity);
(i) whether a cash alternative can be substituted for any prize;
(j) how and when winners will be notified of results;
(k) how and when results will be published (see 5.34);
(l) where appropriate, who owns the copyright of the entries;
(m) whether and how entries will be returned;
(n) whether the consumer may be liable to pay tax as a result of winning a prize.
Complex rules should be avoided and promoters should not need to supplement conditions of entry with additional rules. If further rules cannot be avoided participants should be informed how to obtain them and in such an event, the rules should contain nothing that would have influenced a consumer against making a purchase or participating. Participants should always be able to retain or easily access entry instructions and rules.
The closing date should be clearly stated in each advertisement, on each entry form and on the outer surface of any relevant pack, wrapper or label. This date should not be changed unless circumstances outside the reasonable control of the promoters make it unavoidable.
A poor response or a low level of entries is not an acceptable basis for extending the duration of a promotion or withholding prizes unless the promoters have explicitly reserved their right to do so at the outset. An exception to this is where, in a promotion involving a collection or redemption mechanic, a poor response may, in certain cases, be an acceptable basis for extending the promotion for a reasonable duration.
Promoters should either publish, or make available on request, details of the name and county of residence of prize-winners. Promoters should bear in mind the risk of theft or harassment that may arise if the details given are sufficient to allow the address of a winner of a prize of substantial value to be identified.
Unless otherwise stated in advance, prize-winners should receive their prizes no more than six weeks after the promotion has ended.
If the selection of winning entries is open to subjective interpretation, an independent judge, or a panel including one member who is independent of the competition’s promoters and intermediaries, should be appointed. Those appointed to act as judges should be competent to judge the subject matter of the competition. The identity of judges should be made available to the ASAI on request.
Where a prize promotion involves any form of draw, promoters should ensure that tokens, tickets or numbers are allocated on a fair and random basis. An independent observer should supervise the draw to ensure that individual entries enjoy equal chances.
When prize promotions are widely advertised, promoters should ensure that entry forms and any goods needed to establish proof of purchase are widely available.
The distinction between a prize and a gift should always be clear to consumers. Gifts offered to all or most participants in a promotion should not be described as prizes. If promoters offer a gift to all entrants in addition to giving a prize to those who win, particular care is needed to avoid confusing the two. An individual who has been given a gift should not be included in a list comprising prize-winners.
Promoters should not exaggerate the likelihood of consumers winning a prize.
(a) Specify the number and nature of available prizes or gifts, if applicable. If the exact number cannot be predetermined, a reasonable estimate of the number and a statement of their nature should be made.
(b) Distinguish those prizes that could be won, including estimated prize funds, from those prizes that will be won by one individual at the end of the promotional period.
(c) State whether prizes are to be awarded in instalments, and
(d) State whether prizes are to be shared among prize-winners.
Promoters should not claim or imply that consumers are more lucky, fortunate or successful than they are. In particular, promoters should not use terms such as “finalist” or “final stage” in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not.
Promoters should not claim or imply that the consumer has already won or will win, (including conditionally on carrying out a particular act) a prize or other equivalent benefit if the consumer must incur a cost to claim the prize or benefit if this is not the case, or if the prize or benefit does not exist.
Promoters should not claim that consumers must respond by a specified date or within a specified time if they need not.
Advertisement promotions should be designed and presented in such a way that they can easily be distinguished from editorial material.
Features, announcements or promotions that are published in exchange for a payment or other reciprocal arrangement where their content is controlled by the promoter should comply with the Code.
Publishers announcing reader promotions on the front page or cover should ensure that consumers are informed whether they will be expected to buy subsequent issues of the publication or if any financial contribution is required. Qualifications that may significantly influence consumers in their decision to purchase the publication should appear on the front page or cover.
Promotions claiming that participation will benefit a charity or good cause should:
(a) Identify the charity or good cause that will benefit, and be able to demonstrate that those benefiting consent to the advertising or promotion.
(b) Define the nature and objectives of the charity or cause, unless that information is already widely available.
(c) Specify the extent and the nature of the advantage to be gained by the charity or cause.
(d) State if the promoters have imposed any limitations on the contribution they will make.
(e) Not limit consumers’ contributions. In this regard, any extra money collected should be given to the identified charity or cause on the same basis as contributions below that level.
(f) Not exaggerate the benefit to the charity or cause derived from individual purchases of the promoted product.
(g) Make available on request a current or final total of contributions made. Promotions and the Trade
Promotions and incentive schemes should be designed and implemented to take account of the interests of everyone involved and should not conflict with the duty of employees to their employer or their obligation to give honest advice to consumers.
Promoters should secure the prior agreement of employers or of the manager responsible if they intend to ask for assistance from, or offer incentives to, any other company’s employees. Promoters should observe any procedures established by companies for their employees, including any rules for participating in promotions. In the case of a trade incentive scheme that has been advertised rather than individually targeted, employees should be advised in advance by the advertiser to obtain their employer’s permission before participating.
It should be made clear to those benefiting from an incentive scheme that they may be liable for tax.
Other Regulatory Requirements
Attention is drawn to the requirements of the Data Protection Acts 1988 and 2003 and the ePrivacy Directive (S.I. No. 336/2011) in regard to the collection, processing, keeping, use and disclosure of personal data.
Attention is drawn to the Gaming and Lotteries Act, 1956. (Promoters should note that a prize promotion which involves purchase requires a test of skill; otherwise it may contravene the Gaming and Lotteries Act, 1956.)